Contracts, Coercion, and Condo Boards: A Reply to Stuart Burns*
I thank Stuart Burns for
his critical essay and Geoffrey Klempner for publishing this reply.
A reminder of context is
in order. The question of the moral justifiability of "redistributing"
resources looms on the horizon of any exploration of the ethical dimension
of offering the redistributionist benefit. Therefore, even if Professor
Wolff did not intend to justify redistributionism in the original paper on
which Dr. Klempner invited me to comment, failure of justification leaves
the exploration suspended midair. Thinking that was a point worth making,
I accepted rather than declined the invitation to comment. Now to Mr.
Mr. Burns finds in
Professor Wolff's argument a fallacious shift from the observation of
fact, "A has fewer resources than B," to the normative claim, "A is
*disadvantaged* with respect to B." From there it is no great leap to "A
ought not to be disadvantaged" and perhaps "A ought to have no fewer
resources than does B." Exposing that fallacy, however, and the
egalitarianism that Professor Wolff presupposes are not central to my case
against redistribution. My point has been that if B is *not responsible*
for A's being disadvantaged, then C, D, E, ... n (severally, or calling
themselves "society") have no warrant for picking B's pocket to improve
Mr. Burns seems to be of
two minds about "implied social contract." He suggests it, retracts it,
and then gingerly defends it by speculating about what governmental
employees think. That is, if they think they have an obligation to provide
the services for which taxes are collected, Mr. Burns's argument seems to
be, a contract of some sort must be in force, perhaps social, perhaps
implicit. "I would love to see an argument," he writes, "that explains why
the many social obligations that we all readily accept do not demonstrate
the existence of an implied contract." The short answer is that "ready
acceptance" is not a reliable guide to what obligations we do, or do not,
have. Now for the longer one.
Once we stipulate what we
mean by a word, we may not equivocate. If we use the word "contract" to
refer to arrangements whereby we voluntarily deploy our resources or put
our property at risk in the expectation of mutual gain, then we may not
also use that word to refer to arrangements wherein we do not do these
Some contracts may be no
more than promises and signaled by a simple handshake. Not every human
relationship, however, implies a contract. Nor is every set of mutual
expectations. For example, a gentleman named Vinny may drop by my store on
Tuesdays expecting to collect payment for "protection services." Our
relationship, however, is neither social nor contractual, but anti-social
and criminal. Freedom from Vinny's violence does not cost him anything to
"provide," so I owe him nothing in exchange for refraining from
threatening me. By intending to charge me for what is mine by right he
repudiates the moral point of view.
We ought not, then,
stretch the word "contract" to cover both my financial relationship to
Vinny and my financial relationship to, say, my bodyguard. Philosophers
seek clarity in their efforts to understand. They undermine that goal when
they equivocate, that is, use one word to refer to two radically different
things, for example, a moral principle and its violation.
Continued," I distinguished between moral ownership and mere physical
possession. Along the same lines I distinguish between morally enforceable
coercion and the initiation of force. When I am forced to fulfill an
obligation on which I am reneging, I may *feel* just as I would were
someone to initiate force against me. The sources of those similar
feelings, however, are categorically different, morally speaking. The
failure to see the difference signals the absence of the moral point of
Mr. Burns is inclined,
albeit reluctantly, to conclude that society requires that some
individuals impose their decisions on others, much as Vinny imposes his on
me. Such is the perennial anti-libertarian suspicion, and I commend Mr.
Burns for airing it candidly. Nourishing it, however, is the
presupposition that society is an agent apart from its constituent
members, one that faces moral choices that they do not.
So when Mr. Burns refers
causally to "collective decision-making," I am not sure what the word
"collective" is doing. His decision, mine, and that of others to carry on
this dialogue, for example, do not fuse into a "collective decision."
Similarly, therefore, there cannot be any "collective decision to be
charitable" (on which more presently).
To impose a decision by
initiating force is to impose a cost. It is forcibly to divert scarce
resources into paths that the owner does not prefer, thereby retarding or
altogether frustrating the achievement of his goals. My moral intuitions
suggest that the would-be imposer is obliged to justify his prospective
imposition; the prospective patients of this operation do not have to
demonstrate their right to control physically what they own morally. I
presume the reader has similar intuitions. That presumption may be
Mr. Burns claims to
"agree with Mr. [Hubertus] Fremerey's observations that Mr. Flood
misunderstands the difference between 'contractual' and 'social'
relations." Perhaps Mr. Burns can tell me what Mr. Fremerey means. I grant
that I may be simply wrong when I regard contractual relations as a
species of social relations, but surely that qualifies as some sort of
understanding. How is it a misunderstanding?
People do have moral
obligations before they enter into contracts. Each party expects that the
other will abide by the contract's terms and, each hopes, not just because
of their fear of penalties. You and I cannot enter into an arrangement to
exchange titles unless each of us understands that neither may take by
force or stealth what the other one has, even if he can. Generally,
members of society share an understanding of their moral relationship to
each other as requisite to their respective hopes of achieving a good
life. That understanding may be unarticulated or implied. But mere
understanding does not a contract make.
positive, contractually based obligations must cost something. It costs
nothing, however, to fulfill negative moral obligations. Recall my example
of Vinny the extortionist. He wants to charge me for what is naturally
mine and costs him nothing to honor. Formal contracts are impossible
without "refraint," the individual's moral commitment to refrain from
violating rights. Being prior to contract, refraint is not a contract, not
even an "implicit" or "social" one.
I grant the possibility
that I am wrong when I say that redistribution is equivalent to robbery.
In doing so, however, I am hardly contradicting my other statement, with
which Mr. Burns expressed full agreement, namely, "forcible expropriation
is justifiable only to restore property to its rightful owners, not to
deprive them of it." To equate robbery with redistribution does not
prevent me from distinguishing robbery from restitution.
Paying Common Charges: A Taxing
Experience? (Or, Not-So-Sweet Charity?)
Before discussing Mr.
Burns's imaginary condominium board (with its charitable majority), let us
remind ourselves that Professor Wolff was not seeking the protocols of
offering charity. That would have exposed him to the rejoinder, which I
would have been all too pleased to make, that charity not only should be
voluntary, but can only be so. The transfer of resources, insofar as it is
forced, prevents us from reasonably counting this act as one of charity
toward its beneficiary, either on the part of the expropriated resource
owner or the redistributor. Redistributionists interpret redistributed
benefits as *entitlements*. In the normal meaning of words, no one is
entitled to another's charity, and no one can give in charity to another
that to which he is entitled.
As someone who has sat on
a condo board since 1985, I find Mr. Burns's scenario lacking in real
reference. I do not find in the collection of common charges a form of
"redistribution" from which we may extrapolate a justification of State
by organizations such as condo boards require a compelling business
rationale. Board members are fiduciaries, and as such they must exercise
extreme caution when proposing to use their principals' money for
gift-giving. Having to draw up and implement budgets, board members know
how quickly the uncertainty of future increases in costs (e.g., salaries,
fuel, water, etc.) throws charitable sentiments into cold perspective.
They therefore do not for very long entertain purely charitable gestures,
such as the handicap access ramp of Mr. Burns's example.
Condo unit owners freely
obligate themselves to pay common charges. They have not been coerced into
agreeing to pay them, even if they may need to be coerced into abiding by
that agreement. Coercion becomes a justifiable possibility, however, only
if a unit owner reneges on that freely assumed commitment.
Tickets for sporting
events often contain printed statements to the effect that the event's
sponsor may electronically broadcast the patron's image without
compensating him. Such is the "package deal" that comes with one's ticket.
No patron may legitimately claim later that the broadcaster "invaded his
privacy." Similarly, there is no violation of fiduciary trust if the
majority of board members vote in favor of a charitable venture. Caveat
emptor. Read the fine print.
Mr. Burns's focus on "a
signed legal document" or "a piece of paper" is therefore misplaced. That
is not what distinguishes a board of fiduciaries that arises through
market transactions from a State that recognizes (in principle) no
limitation on its prerogative to override such transactions. When people
sign and file their tax returns "voluntarily" they contribute to the
fiction that the government's has a "signed contract" to cloak its
depredations. The relevant test of contract is whether an interpersonal
relationship is formed peacefully, not whether it is memorialized on
The State: Love It or Leave It?
Mr. Burns finds it "easy
to imagine a challenged State simply mandating that every resident either
sign an explicit legal contract or leave the jurisdiction." When it comes
to the right to demand or mandate anything, however, imagination is not
germane. Either the demand is justifiable or it is not. By what warrant
does a State mandate that its subjects "pay up or leave" as, for example,
a landlord might announce to his tenant? The State may have the physical
power to enforce its demands, but power is not self-justifying. On the
local level, a bully has analogous power, but no corresponding right, to
push others around. Since taxing entities ring our planet, there is little
short-term hope of finding refuge from taxation. That omnipresence,
however, does not prove it moral rightness. Might does not make right, to
coin a phrase.
As with chattel slavery,
which was once as global as taxation is, the only coherent goal with
respect to the latter, as I see it, is not containment but abolition. Let
parasites and aggressors "up and leave," but let producers and traders be.
I see no basis for Mr. Burns's proposition that by remaining on the
territory over which a government claims a monopoly of force, I am
"implicitly agreeing" with that relationship. (I may, of course,
"recognize" that hegemony the way, say, Hezbollah "recognizes" the State
When I contract with
others in the expectation of enjoying certain benefits, I may also
simultaneously generate obligations to pay for things I may not want.
Taxation, however, does not enter peoples' lives that way. By the time it
is a live issue for anyone, he discovers that his "social security" number
is already his "taxpayer identification" number. It was never optional.
There is no correlation between what you pay in taxes and what you want
from the State. Any satisfaction is purely coincidental and comes at the
cost of the many other satisfactions one is forced to forego.
Peaceful producers and
traders are "justified in employing coercive expropriation to recover"
fees to which they are contractually due, as long as they do so in a way
that is not itself criminal. Nothing justifies impulsive, disproportionate
violence in the name of restitution. For example, the man who knocks
another man down and takes a watch from him may, for all passers-by know
to the contrary, not be a mugger at all, but rather a mugging victim
retrieving his watch from one. The uncertain passers-by will not
responsibly interfere . . . unless the mugging victim with the upper hand
seems about to inflict deadly force against the subdued mugger. One
purpose of a system of courts is to resolve such ambiguities.
Mr. Burns's question,
"does . . . the management structure [have] the moral justification to
employ coercion?," receives an affirmative answer, then, but I hasten to
emphasize the coercion's defensive quality. It does not initiate force or
violence, but rather defends against or responds to it. (In this case,
"it" refers to the fraud committed by the reneging unit owner, fraud being
a species of theft.) As I wrote in my earlier contribution to this
discussion, "... the State has no resources it did not acquire by force or
the threat thereof. The State is not a family whose individual members
have voted on where to go for their summer vacation and who now must
cooperate to make the trip a success. Neither ... is the State a club to
which we owe dues." I must now add: And neither is the State like a
condominium board of managers who are fiduciaries of unit owners at whose
pleasure they sit.
If anyone thinks
that the ladies and gentlemen who wield redistributory power are related
to taxpayers as fiduciaries to principals, philosophy cannot help him.
Anthony Flood, "Redistributionism Continued,"
Philosophy Pathways, No. 56, 20 April 2003.
commenting on the ethics of Irving Babbitt who referred to the "Will to
Refrain," Henry Hazlitt observed "a curious gap in the English language.
The verb restrain has the noun-form restraint, but the verb
refrain (though similar in origin through the Latin and the French) has no
noun-form refraint. For the noun we are obliged to fall back,
confusingly, on restraint (which implies coercion by others) or,
asymmetrically, on self-restraint or abstention. The noun
refraint would serve a useful purpose."
The Foundations of Morality, Los
Angeles: Nash, 1964, p. 377, n. 12. See note 12 of
Chapter 22: .
Flood, "A Comment on Professor Wolff's 'Four Forms of Redistribution,'"
Philosophy Pathways, No. 53, 9 March 2003.
(c) Anthony Flood 2003
*This essay first appeared in
Number 61, 29 June 2003 It is a
rejoinder to Stuart Burns, "Redistributionism: Comments on the Recent
Debate," Philosophy Pathways, Number 60, 15 June 2003